The following terms and conditions (the “Addendum”) are entered into between MagnitudeOfChange LLC, dba MagnitudeOfChange (“MagnitudeOfChange”), in its capacity as the “Media Company,” and the Advertiser and Agency acting as agent for an Advertiser (collectively, the “Client”), in connection with the applicable insertion order (or similar form or document) which references or links to this Addendum (the “IO”). Except as set forth in this Addendum, the IO is governed by the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 (the “IAB Terms”). The terms of the IO, along with the IAB Terms and this Addendum (collectively, the “Agreement”), represent the entire agreement among the parties with respect to the subject matter hereof, and supersede all terms and conditions previously agreed upon. To the extent anything in this Addendum conflicts with the IAB Terms and/or any other terms included or referenced in the applicable IO, this Addendum shall control unless it is expressly noted in the IO that such terms supersede any conflicting terms in this Addendum.
Capitalized terms used and defined in the IAB Terms shall have the same meaning when used in this Addendum unless otherwise stated herein. For IOs entered into directly between Advertiser and MagnitudeOfChange, all references to “Agency” in the IAB Terms and this Addendum shall refer to the Advertiser, and Sections X(c) and XII(h) of the IAB Terms shall not apply.
1. Ad Serving
a.) Client’s signature on or assent to the IO will be MagnitudeOfChange’s authorization to provide certain advertising and media services (“Services”) set forth on the IO and to purchase the media specified in the IO for the Client’s campaign (the “Campaign”). All media purchases are billed consistent with actual delivery. Any goals or KPIs specified above are measurements of success for evaluation purposes only and will not impact billing.
b.) Client’s Ads will be served, monitored, and delivery verified by the MagnitudeOfChange ad delivery platform and system, managed by MagnitudeOfChange, which will be considered the accurate number of impressions served by both MagnitudeOfChange and Client based on the reporting metrics for the Campaign specified in the IO. MagnitudeOfChange will not provide reporting of net media or other Services, it being understood that no volume guarantee is provided in programmatic buying and thus pricing is dynamic. If a Campaign is underspending based on the available inventory, MagnitudeOfChange reserves the right to redistribute media spend to similar channels with additional inventory. The remedy for any failure to deliver advertising impressions is a make-good that is mutually agreed upon between MagnitudeOfChange and Client in accordance with the IAB Terms, and no refund shall be issued in accordance with Section XI(b) of the IAB terms unless MagnitudeOfChange otherwise agrees in writing. Post-click and post-view metrics will be considered in performance or conversion analysis, but will not impact media billing.
c.) The first sentence of the second paragraph of Section IV(c) of the IAB Terms is deleted and replaced with the following: “If Agency informs Media Company that Media Company has delivered a materially incomplete or materially inaccurate report, or no report at all, Media Company will cure such failure within five (5) business days of receipt of such notice.”
d.) Section XIII(b) of the IAB Terms is deleted and replaced with the following: “If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined by Media Company’s ad server unless explicitly noted and agreed to in the IO. Advertiser and Agency agree that for any Third Party Ad Server to be used for Controlling Measurement it must be certified as compliant with the IAB/AAAA Ad Measurement Guidelines. Media Company must pre-approve in writing any Third Party Ad Server and secondary serving or tracking vendors of the Advertiser or Agency for each campaign. Media Company shall not be bound by any measurement or reporting provided by any non-pre-approved vendor.”
e.) Ads will only be targeted to the United States and Canada inventory and traffic unless specified in the IO above and will not be targeted to the EU. MagnitudeOfChange is not responsible for Ads which may run in jurisdictions inconsistent with such targeting. MagnitudeOfChange’s buying platform will comply with category restrictions specified in the IO, provided, however, that MagnitudeOfChange is not responsible for the classification of websites by third parties or for where Ads are actually served. In connection with Section II(d) of the IAB Terms, Client will provide MagnitudeOfChange with Editorial Adjacency Guidelines in connection with an IO prior to or concurrently with the delivery of the IO. If the Client fails to provide clear Editorial Adjacency Guidelines to MagnitudeOfChange prior to or concurrently with the delivery of the IO (including but not limited to inclusion and/or exclusion Site list, competitive separation, any updates to the Editorial Adjacency Guidelines or Site list, etc.), MagnitudeOfChange shall not be liable for non-compliance. In the event MagnitudeOfChange does not agree to the Editorial Adjacency Guidelines, MagnitudeOfChange must notify Client in writing, and Client and MagnitudeOfChange will cooperate in good faith to find a mutually agreeable resolution.
f.) For purposes of the Agreement, the terms “Media Company Properties” and “Network Properties” shall be deemed to include websites, apps and social media to be utilized in connection with a Campaign (whether or not specified in the applicable IO).
2. Termination
a.) After the initial 30 days of the Campaign, MagnitudeOfChange allows Client the right to terminate the IO or pause the Campaign on not less than 48 business hours written notice (email acceptable).
b.) MagnitudeOfChange may terminate any IO or Campaign at any time (i) for Client’s failure to pay MagnitudeOfChange amounts due and payable under the IO after 5 days’ notice to Client, (ii) for any reason on 30 days’ notice to Client or at the conclusion of a Campaign, whichever is earlier, or (iii) upon notice to Client in the event that a media vendor’s material change in terms to MagnitudeOfChange makes it impossible or impractical for MagnitudeOfChange to complete the IO on the basis originally proposed to the Client, as determined by MagnitudeOfChange in its reasonable discretion.
c.) If the Agreement and/or an IO is terminated by MagnitudeOfChange due to Client’s breach, Client is required to pay MagnitudeOfChange all fees due under the Agreement and/or the IO within ten (10) days of the effective date of such termination.
d.) Any termination of the Agreement and/or an IO shall not relieve either party of its obligations accruing or incurred prior to the effective date of such termination.
3. Billing
a.) Payment terms are prepay weekly, with payment due on receipt of the applicable invoice or such other date as may be set forth thereon, unless other payment arrangements are mutually agreed upon in writing (email acceptable). Payment may be made by check, ACH wire transfer, or credit card. All credit card payments will have a 2.5% processing fee added. Any payments not received by the due date therefor may be assessed a late fee equal to 2.5% (or the maximum percentage allowed by law, if lower) of the amount due and payable, in the discretion of MagnitudeOfChange. Campaign will begin on the day and time specified in the IO. Any issues arising from invoices received must be communicated to MagnitudeOfChange within 10 business days from Client’s receipt of the invoice, or such invoice will thereafter be deemed conclusive.
b.) Campaign will auto-renew weekly following IO term, unless terminated by either party in accordance with the Agreement.
4. Privacy
a.) Client is responsible for privacy policies on its own and affiliated websites (the “Client Sites”). MagnitudeOfChange relies on Client to ensure that data collection through tags and data usage complies with (i) all state and federal laws, corporate standards, policies, regulations, and procedures applicable to Client, including Client’s privacy policy and laws related to foreign jurisdictions, including, without limitation, the GDPR Act (collectively, “Applicable Laws”); (ii) the self-regulatory principles, guidelines, rules and codes of conduct of the Digital Advertising Alliance, the Interactive Advertising Bureau, the Direct Marketing Association and any other self-regulatory organizations to which third parties providing services, platforms, and data are bound and any required notices and consents; and (iii) privacy disclosures and information collection requirements imposed on advertisers by targeting of media by MagnitudeOfChange, Client and third parties in order to comply with Applicable Laws. Accordingly, Client represents, warrants and covenants that it will display and comply with a privacy notice on the Client Sites that complies with Applicable Laws. Where required by Applicable Laws (including, without limitation, the Children’s Online Privacy Protection Act and GDPR Act), Client will deploy appropriate notices and functionality to obtain authorizations and consents as required.
b.) Client represents, warrants and covenants that any data, materials, information or technology that Client provides to MagnitudeOfChange (e.g., Client’s first party data or other data separately acquired by Client, but not data collected by MagnitudeOfChange or MagnitudeOfChange’s third party suppliers) does not and will not contain any information that is considered personally identifiable information or its functional equivalent under applicable privacy policies and Applicable Laws unless Client has obtained express consent. In addition, Client agrees that any data, materials, information or technology that Client does provide to MagnitudeOfChange has been collected and/or created, and shall be provided to MagnitudeOfChange in compliance with applicable privacy policies and Applicable Laws, including that all required privacy disclosures have been and will be made and all required appropriate consents have been and will be obtained.
5. Content
a.) Only Client’s first party data will be used in the Campaign. MagnitudeOfChange’s technology vendors, including Google, The Trade Desk, Zeta Global, Criteo, and Amazon, collect “Campaign Data” via website installed pixels to record activities related to Ads, including technical information such as IP addresses, browser type, etc. MagnitudeOfChange’s contracts with Google, The Trade Desk, Zeta Global, Criteo, Amazon, and other platforms used allows use of Campaign Data on an aggregated basis that does not identify Client or any end user as a source of such data. MagnitudeOfChange does not create segments, resell or disclose Campaign Data to any third party.
b.) Client will provide MagnitudeOfChange with the content of all Ads, including, without limitation, logos, graphic files, links, or other advertising material (“Content”) to be displayed, distributed, or used. Client represents and warrants that its website(s) and the Content will not contain any lewd, obscene, pornographic, hateful, violent, defamatory, or libelous content, will not violate any Applicable Laws regarding unfair competition, anti-discrimination, or false advertising, and will not contain viruses, Trojan horses, worms, time bombs, or other similar harmful programming routines. Client may change the Content by providing MagnitudeOfChange new Content, and, subject to the other terms of the Agreement (including Section IX(c) of the IAB Terms), MagnitudeOfChange will use commercially reasonable efforts to implement all such requested changes within 48 business hours of receipt. MagnitudeOfChange shall not, without Client’s prior written instruction or consent, (i) alter or modify the Content, (ii) create, publish or distribute any written material (other than the Content) that makes reference to Client, or (iii) make any representations, warranties or other statements concerning Client, Client’s products, services, website, website policies, or the Content. Each party will notify the other promptly upon discovery of any malfunctioning of the Content or links to Client’s website(s). If MagnitudeOfChange creates Content for Client, Client will review and approve such materials before use and will be fully responsible for such materials, which will be considered Content hereunder and Advertising Materials for purposes of the Agreement.
c.) For deliverables on any Network Property, Client shall comply with applicable terms, policies and guidelines made publicly available by such Network Property. MagnitudeOfChange shall not be liable for any claims, damages or losses arising from a Network Property’s operation of its platform, including a Network Property’s collection and use of data.
6. Warranties
a.) Client warrants and represents that: (i) the display of all submitted Content, programming Content and/or other video, audio, visual and interactive data to the prescribed audience does not violate nor encourage violation of criminal laws, civil laws, or community standards (including that the Content is not fraudulent, deceptive or unlawful) and complies with all Applicable Law; (ii) ad tags provided will not load malware, viruses or other harmful content, and that any tracking within the tag will comply with NAI standards; (iii) any and all Content provided by Client, or on behalf of Client, under this IO meets the specifications and other technical and delivery requirements established by the platforms offered by MagnitudeOfChange under this IO and applicable to such; (iv) all processes, methodologies, models and data provided, developed, optimized or improved by MagnitudeOfChange are and remain MagnitudeOfChange’s sole property; and (v) it will remove all tags at the termination of this Agreement.
b.) The Advertiser’s indemnification obligations under Section X(b) of the IAB Terms shall additionally apply to Losses arising or resulting from (i) Advertiser’s breach or alleged breach of any representations, warranties or covenants contained in the Agreement or of applicable laws, rules or regulations (including Advertiser’s alleged failure to pay any fees for rights, including public performance, guild fees, or other fees associated with an Ad or Advertising Materials), (ii) the Content, Client’s website(s) and the other pages and sites to which an Ad or Advertising Materials link, and (iii) the use of any products or services sold through an Ad or Advertising Materials or through pages or sites to which they link. Advertiser shall be responsible for compliance with the terms of the Agreement by its Agency and other representatives, and Advertiser’s indemnification obligations shall extend to any acts, omissions, services and deliverables of its Agency and such other representatives.
c.) EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, MagnitudeOfChange DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REGARDING GOOGLE, THE TRADE DESK, THE ZETA GLOBAL NETWORK OR DSTILLERY, THE SERVICES OR OTHERWISE RELATING TO THE AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING. MagnitudeOfChange’S AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, INCLUDING ANY CLAIMS RELATED TO THE SERVICES, CAMPAIGN OR ANY CONTENT, SHALL BE LIMITED TO THE LESSER OF (I) $10,000 AND (II) THE AMOUNTS ACTUALLY RECEIVED BY MagnitudeOfChange FROM CLIENT UNDER THE AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM.
7. Confidentiality
The content of an IO and any delivered reporting shall be deemed “Confidential Information” and will not be disclosed by either party.
- License
- Client grants MagnitudeOfChange a revocable, non-exclusive, non-transferable worldwide license to use, reproduce and transmit, during the term of the IO, its names, logos, trademarks, service marks, trade dress, copyrights, proprietary technology and other intellectual property rights, whether currently used or which may be developed or used by it in the future (“Marks”), solely for the purpose of displaying the Content and fulfilling MagnitudeOfChange’s obligations under the Agreement. Client owns and shall retain all right, title and interest in its Marks.
- Other
- a.) This Addendum is effective as of the Effective Date set forth above. MagnitudeOfChange reserves the right to update and/or change this Addendum without the consent of either Advertiser or Agency, and such updates/changes will be listed here with the effective date. Client’s continued use of MagnitudeOfChange’s services hereunder will be in accordance with the version effective at such time for any IO which links to or makes reference to this Addendum. Other than as set forth in this clause (a), the Agreement may not be amended, modified or waived, unless agreed to in writing by the party or parties against which enforcement of such amendment, modification or waiver is sought.
- b.) For purposes of Article VIII of the IAB Terms, pandemic and infectious disease (including COVID-19) shall be considered a “Force Majeure event,” whether or not foreseeable.
- c.) Section IX(a) of the IAB Terms is amended by replacing “Section V(c)” with “Section V(b)”.
- d.) Notwithstanding Section XIV(b) of the IAB Terms, MagnitudeOfChange shall be permitted to assign the Agreement to (a) one of its wholly owned affiliates or subsidiaries, or (b) an entity that acquires or succeeds to all or substantially all of the business or assets of MagnitudeOfChange to which the Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise.
- e.) Section XIV(d) of the IAB Terms is amended to (i) insert “Nevada, without reference to its choice of law rules” in the first open space and (ii) delete the third sentence thereof. Any and all disputes arising under the Agreement between the parties, including, without limitation claims arising out of the Agreement against any individual owner, officer, director or other representative or affiliate of any party to the Agreement, shall be resolved solely and exclusively via final and binding arbitration before a single arbitrator in Clark County, Nevada under the American Arbitration Association (“AAA”) Commercial Arbitration Rules. Each party shall bear its own attorney’s fees and half the costs and fees of AAA and the arbitrator; provided that the arbitrator shall be instructed to require the losing party to reimburse the prevailing party’s attorney fees and costs of arbitration. Notwithstanding the foregoing, this provision shall not prevent any party to the Agreement from maintaining an action for injunctive relief or to collect an arbitration award granted hereunder.
